Iñaki Zurutuza Arigita

Some of the most memorable accidents involving port pilotage of vessels are those of the "Urkiola" in 1976 and the “Mar Egeo" in 1992. Moreover, on the 8th of May last in the port of Genoa in Italy, the ship "Jolly Nero”, with a pilot on board, collided with the port control tower, resulting in tragic consequences. Mr Iñaki Zurutuza Arigita, a Law graduate from the Public University of Navarre (UPNA), has analysed for his PhD thesis the form of management of the pilotage service, its legal nature and the extent of the legal liability of the pilot on being contracted by a shipping company.

Pilotage is a service providing guidance to ships’ captain in order to facilitate safe port entry to and exit from a port and the nautical manoeuvres thus involved. “It is a practice of maritime-port navigation”, explained the researcher, “and has a fundamental influence on the success of maritime transport, given that, not only is it a service provided in order to maintain maritime safety, but it is also a supporting navigational contract which aids the normal development of the ship owner’s business activity”.

One of the aspects defended in his thesis is that, while in many cases the pilot can only be considered as a mere advisor, “in many other cases he directs the course of the vessel or acts as the operator of the manoeuvre itself, and thus is not just an advisor to the captain”. In this context, Mr. Zurutuza also tackles questions such as the demarcation of the responsibilities arising from pilotage, differentiating damages to third parties due to actions of the pilot on board ship from damages due to reasons exclusively attributable to the negligence of the captain.

The PhD thesis, entitled “El practicaje” (Pilotage), was directed by Professors in Mercantile Law Juan Carlos Sáenz García de Albizu and Rafael Lara González, from the Department of Private Law at the UPNA. The work is structured in five chapters. The first is a review of the historical background of pilotage and analyses its regulatory framework, both in Spain and in neighbouring countries. The three following chapters tackle the legal status of pilotage, the pilotage service and the contractual situation of the pilot, while the final chapter is given over to the civil responsibility arising from pilotage practice.

Main conclusions

With regard to the legal nature of pilotage service, current port regulations provide for the service to be given in free competition by private operators, through a licencing system. In the view of Mr. Zurutuza, “although the Port Authorities lost the control of the service — before the Legislation of 2003 it corresponded to them —, this does not impede that the pilotage service currently continues to be an activity aimed at meeting a general interest (that of protecting maritime safety during port and harbour navigation), and so the legal nature of the public service can be described, in the broad sense, as a service of general interest”.

Also, as regards the management of the service, he concludes that “the implementation of the private system of management is, as it stands today, a wish of the legislators which is out of step with reality. Thus, it has been observed that, for the provision of pilotage services at each port, the Port Authority in question grants a single licence to the same Port Pilots’ Association that has traditionally been providing this service, so that there is still no intra-port competition as intended by the legislators”.

With respect to the content of the pilotage contract, although the regulations establish the main obligation of the pilot as being purely guidance and advice for the ship’s master (indicating the vessel’s course and other necessary nautical manoeuvres), the reality points to this task going beyond mere guidance or advice. “This is why”, explained the author, “in some cases it is the pilot himself who has to steer the ship or carry out manoeuvres thus required. As a consequence”, according to the thesis, “there are cases in which the pilot acts not only as an advisor to the captain, but as a director or executor of nautical manoeuvres”.

Liability for damages

Finally, the PhD research tackled questions arising from the legal responsibility of the pilot. As regards contractual liability, it was concluded that “the pilot shall be liable towards the ship owner for non-compliance or defective fulfilment of his principal obligation”. Depending on the case, the ship owner can terminate the contract and, if the shipping company suffers damages, the pilot may even have an obligation to pay compensation to the company.

As regards the liability of the pilot for third party damages arising from his performance on board the vessel, “evidently this is discarded if the damages arise due to reasons exclusively attributable to the negligence of the captain”. In this context, Mr. Zurutuza points out that “the extra-contractual liability of the pilot can only be deemed as such when the third party damages are exclusively due to his fault or to one shared with the captain”.

Mr. Iñaki Zurutuza Arigita is a law graduate from the Public University of Navarre (UPNA) and who finished his degree at the University of Strathclyde in Glasgow (Scotland). He has a PhD from UPNA and is currently assistant lecturer there and is part of its Private Law research team, participating in a number of projects. Since 2006 he has been lecturing at the Faculty of Legal Sciences in Mercantile Law. He has undertaken several research stays at the Max-Planck-Institute in Hamburg. He is collaborating with various scientific publications linked to Maritime Transport Law and to Maritime Law and is a permanent contributor to the maritime transport section of the Transport Law journal.

* Elhuyar translation, published in www.basqueresearch.com